JEFFREY J. DIERMEIER AND ANR.versusSTATE OF WEST BENGAL & ANR.

                         (201 O] 7 S.C.R. 128


A               JEFFREY J. DIERMEIER AND ANR.
                                   V.
                STATE OF WEST BENGAL & ANR.
                (Criminal Appeal No. 1079 of 2010)

                            MAY 14, 2010
B
                [D.K. JAIN AND H. L. DATTU, JJ.]

        Penal Code, 1860:

c        s. 499 - Defamation - Meaning and Ingredients of -
    Held: The offence of defamation is the harm caused to
    reputation of a person - To constitute "defamation'', there must
    be an imputation and such imputation must have been made
    with the intention of harming or knowing or having reason to
0   believe that it will harm the reputation of the person about
    whom it is made.

        s. 499, Tenth Exception - Charges of defamation -
  Ambit and scope of - Held: For invoking the aid of Tenth
  Exception to s.499 /PC, both "good faith" and "public good"
E have to be established by the accused - However, no rigid
  test for deciding whether the accused acted in "good faith" and
  for "public good" under the said Exception can be laid down
  - The question has to be considered on the facts and
  circumstances of each case, having regard to the nature of
F imputation made; the circumstances on which it came to be
  made and the status of the person who makes the imputation
  as a/so the status of the person against whom imputation is
  allegedly made - On facts, case for quashing the complaint
  uls. 482 Cr.P.C. not made out - Code of Criminal Procedure,
G 1973 - S. 482.

        Code of Criminal Procedure, 1973 - s.482 - Inherent
    powers of the High Court - Scope and ambit of - Discussed.

        The Chartered Financial Analysts Institute (CFA
H                          128
  JEFFREY J. DIERMEIER AND ANR. v. STATE OF             129
             WEST BENGAL & ANR.
Institute) is a non stock corporation, incorporated under      A
the laws of the State of Virginia, United States, which
confers the designation of Chief Financial Analyst (CFA)
upon its members who fulfil a minimum professional
criterion.
                                                               B
    Appellant no.1 is the President and Chief Executive
Officer of the CFA Institute, while appellant no.2 is the
President of the Indian Association of Investment
Professionals and a member of the CFA Institute.

      In the year 1985, on being approached by                 C
respondent no.~- Institute of Chartered Financial Analysts
of India (ICFAI), the CFA Institute had entered into a
licence agreement with them to conduct its CFA program
in India. The agreed arrangement continued for quite
some time, whereafter the CFA Institute decided to wean        D
off its arrangement with respondent No.2 as it felt that the
latter was not adhering to the· required standards and
quality in the said program; and issued a notice of
termination of its licence.
                                                               E
     Subsequently, in the year 2004, the CFA Institute filed
a ci~il suit in the High Court of Delhi for permanent
injunction restraining respondent No.2 from using the
trade marks, services, service marks or trade name CFA,
Chartered Financial Analyst, The Institute of Chartered
                                                               F
Financial Analysts of India, ICFA and ICFAI or any other
name or mark identical or deceptively similar to these
marks and passing off CFA Institute Programs or
business as that of CFA Institute. The High Court granted
interim injunction against respondent no.2. However,
respondent No.2, through its sponsored University in           G
Tripura, issued advertisement inviting applications for
fresh enrolments for award of "CFA" certification.

   According to the CFA Institute, since the
programmes which were continuing at the time of                H
    130    SUPREME COURT REPORTS                [2010] 7 S.C.R.


A passing of the order of interim injunction by the High
  Court of Delhi had come to an end, the invitation for fresh
  enrolment in terms of the said advertisement was for
  subsequent programmes, which were not in existence at
  the time of the interim injunction order and, therefore, it
B was in breach of the said interim injunction. Accordingly,
  the CFA Institute issued a public notice under the caption
  "A Word of Caution to the Indian Investment
  Community".

       Alleging that the said public notice was defamatory
C within the meaning of s.499 IPC, respondent No.2 filed a
  private complaint against the appellants for offence
  under s.500 r/w s.34 of IPC. The gravamen of the
  allegations made in the complaint was that the CFA
  Institute, through appellant no.1, issued the offending
D "Word of Caution" wherein they: (1) deliberately and
  consciously did not publish the full text of the interim
  injunction order granted by the High Court against
  respondent No.2; they did not mention that order was
  with a rider that it will not come into effect till the end of
E the current academic session of CFA programme run by
  respondent no.2 and that the defamatory advertisement
  portrays that the designation given by CFA Institute is the
  only valid designation and the CFA certificate given by
  respondent no.2 is not valid. According to the
F respondent no.2, this was a malicious act on the part of
  appellant No.1, with the intention to harm its reputation
  in the estimation of the public in general and its present
  and past students in particular and, therefore, the
  appellants are liable to be punished under s.500 r/w s.34
G IPC.
        The trial court took cognizance of the complaint and
    issued summons to the appellants. The appellants filed
    petition under s.482 CrPC seeking quashing of the
    complaint. The High Court dismissed the petition.
H
,.     JEFFREY J. DIERMEIER AND ANR. v. STATE OF            131
                  WEST BENGAL & ANR.
          Before this Court, the question which arose for          A
     consideration was whether the allegations projected in
     the complaint against the appellants, did not constitute
     an offence of "defamation" as defined in s.499 IPC and
     hence did not attract the penal consequences envisaged
     in s.500 IPC, ar,d therefore, it was a· fit case where the    s
     High Court in exercise of its jurisdiction under s.482 CrPC
     should have quashed the complaint.

         Dismissing the appeal, the Court

            HELD: 1. Section 482, CrPC envisages three C
     circumstances under which the inherent jurisdiction may
     be exercised, namely, (i) to give effect to an order under
     the CrPC; (ii) to prevent abuse of process of Court; and
     (iii) to otherwise secure the ends of justice. Nevertheless,
     it is neither possible nor desirable to lay down any D
     inflexible rule which would govern the exercise of
     inherent jurisdiction of the Court. The power possessed
     by the High Court under the said provision is very wide
     but is not unlimited. It has to be exercised sparingly,
     carefully and cautiously, ex debito justitiae to do real and E
     substantial justice for which alone the court exists.
     However, the inherent jurisdiction does not confer an
     arbitrary power on the High Court to act according to
     whim or caprice. The power exists to prevent abuse of
     authority and not to produce injustice. [Para 16] [143-E- F
     G; 144-A-B]                             .

          R.P. Kapur v. State of Punjab AIR 1960 SC 866; Dinesh
     Dutt Joshi v. State of Rajasthan (2001) 8 SCC 570 and Som
     Mittal v. Government of Karnataka (2008) 3 SCC 753, relied
     on.                                                           G

         2.1. To constitute "defamation" under s.499 IPC, there
     must be an imputation and such imputation must have
     been made with intention of harming or knowing or
     having reason to believe that it will harm the reputation     H
    132    SUPREME COURT REPORTS               [2010] 7 S.C.R.


A of the person about whom it is made. In essence, the
  offence of defamation is the harm caused to the
  reputation of a person. It would be sufficient to show that
  the accused intended or knew or had reason to believe
  that the imputation made by him would harm the
B reputation of the complainant, irrespective of whether the
  complainant actually suffered directly or indirectly from
  the imputation alleged. However, as per Explanation 4 to
  the Section, no imputation is said to harm a person's
  reputation, unless that imputation directly or indirectly
c lowers the moral or intellectual character of that person,
  or lowers the character of that person in respect of his
  caste or of his calling, or lowers the credit of that person,
  in the estimation of others or causes it to be believed that
  the body of that person is in a loathsome state, or in a
  state generally considered as disgraceful. [Paras 24 and
0
  25) [149-C-F]

         2.2. As regards the argument of the appellants that
    since the "Word of Caution" was issued in "good faith"
    for the benefit of those who were planning to acquire CFA
E   Certificate, and the same being for the "public good", the
    case falls within the ambit of Tenth Exception to s.499 IPC
    and, therefore, the appellants cannot be held liable for
    defamation, it is plain that in order to bring a case within
    the scope of the Tenth Exception, it must be proved that
F   statement/publication was intended in "good faith" to
    convey a caution to one person against another; that
    such caution was intended for the good of the person to
    whom it was conveyed, or of such person in whom that
    person was interested, or for the "public good". The
G   appellants issued the offending "Word of Caution"
    ostensibly in order to warn those who were either
    planning to hire an investment professional or to obtain
    a CFA designation that there was an interim injunction
    against respondent No.2 from using their afore-noted
H   trademarks. However, it cannot be denied that while the
  JEFFREY J. DIERMEIER AND ANR. v. STATE OF             133
             WEST BENGAL & ANR.
                                                               A
publication refers to the interim order passed by the High
Court, it omits to mention that the said injunction will not
come into effect till the end of current academic session
of the CFA programme, and that the order would not
mean expression of final opinion on the matter. [Paras 26,
28 and 31] [149-G; 150-C; 151-8-F]                             B

      2.3. It is trite that where to the charge of defamation
 under s.500 IPC, the accused invokes the aid of Tenth
 Exception to s.499 IPC, "good faith" and "public good"
 have both to be established by him. The mere plea that c
 the accused believed that what he had stated was in
 "good faith" is not sufficient to accept his defence and
 he must justify the same by adducing evidence.
 However, he is not required to discharge that burden by
 leading evidence to prove his case beyond a reasonable D
  doubt. It is well settled that the degree and the character
  of proof which an accused is expected to furnish in
  support of his plea cannot be equated with a degree of
  proof expected from the prosecution in a criminal trial.
  The moment the accused succeeds in proving a
                                                              E
  preponderance of probability, onus which lies on him in
  this behalf stands discharged. Therefore, it is neither
  feasible nor possible to lay down a rigid test for deciding
 whether an accused person acted in "good faith" and for
  "public good" under the said Exception. The question F
  has to be considered on the facts and circumstances of
  each case, having regard to the nature of imputation
  made; the circumstances on which it came to be made
  and the status of the person who makes the imputation
  as also the status of the person against whom imputation
  is allegedly made. These and a host of other G
  considerations would be relevant and required to be
  considered for deciding appellants' plea of "good faith"
  and "public interest". However, all these are questions of
. fact and matters for evidence. [Para 32] [151-G-H; 152-A-
  E]                                                          H
    134     SUPREME COURT REPORTS                [201 O] 7 S.C.R.


A      2.4. In the instant case, the stage for recording of
  evidence had not reached and, therefore, in the absence
  of any evidence on record, it is difficult to return a finding
  whether or not the appellants have satisfied the
  requirements of "good faith" and "public good" so as to
B fall within the ambit of the Tenth Exception to s.499 IPC.
  Similarly, it will neither be possible nor appropriate for this
  Court to comment on the allegations levelled by
  respondent No.2 and record a final opinion whether these
  allegations do constitute defamation. Reading the
c complaint as a whole, it is difficult to hold that a case for
  quashing of the complaint under s.482 CrPC has been
  made out. For the afore-going reasons, the High Court
  was right in refusing to quash the complaint under s.500
  IPC. [Paras 33 and 34] [152-G-H; 153-A]
D      State of Haryana v. Bhajan Lal 1992 Supp. (1) SCC 335;
  Shatrughna Prasad Sinha v. Rajbhau Surajmal Rathi & Ors.
  (1996) 6 SCC 263; Rajendra Kumar Sitaram Pande & Ors.
  v. Uttam & Anr. (1999) 3 SCC 134; Sewakram Sobhani v. R.K.
  Karanjia, Chief Editor, Weekly Blitz & Ors. (1981) 3 SCC 208;
E M. N. Damani v. S. K. Sinha & Ors. (2001) 5 SCC 156;
  Shriram Refrigeration Industries v. Hon'ble Addi. Industrial
  Tribunal-Cum-Addi. Labour Court, Hyderabad & Ors. (2002)
  9 SCC 708; Chand Dhawan (Smt) v. Jawahar Lal & Ors.
  (1992) 3 SCC 317; Jagir Kaur & Anr. v. Jaswant Singh [1964]
F 2 S.C.R. 73; State of Bihar & Ors. v. Shyam Yadav & Ors.
  (1997) 2 SCC 507 and 0. S. Parvathamma v. A. Srinivasan
    (2003) 4 sec 705, referred to.

                        Case Law Reference:
G    1992 Supp. (1) SCC 335 referred to                Para 9
     (1996) 6 sec 263            referred to           Para 9
     (1999) 3 sec 134            referred to           Para 9
     (1981) 3 sec 208            referred to           Para 10
H
  JEFFREY J. DIERMEIER AND ANR. v. STATE OF                135
             WEST BENGAL & ANR.
 (2001) 5 sec 156             referred to            Para 10       A
 (2002) 9 sec 108             referred to            Para 10
 (1992) 3 sec 311              referred to           Para 12
  (2008) 3 sec 753             relied on             Para 12
                                                                   B
 [1964] 2 S.C.R. 73            referred to           Para 14
 (1997) 2 sec 507              referred to           Para f4
 (2003) 4 sec 105              referred to           Para 14
                                                                   c
 AIR 1960 SC 866               relied on             Para 17
 (2001) 8 sec 570              relied on             Para 18
             '
    CRIMINAL APP ELLATE JURISDICTION : Criminal Appeal
No. 1079 of 2010.                                                  D
    From the Judgment & Order dated 18.11.2008 of the High
Court of Calcutta in C.R.R. No. 523 of 2008.

   Shanti Bhushan, Rajendra Kr, Nitya Ramakrishnan, Sanjai
Kumar Pathaak, Priya Rao, for the Appellants.                      E

    K.K. Venugopal, Y.Raja Gopala Rao, Y. Ramesh, Y.
Vismai Rao, Pooja Dhir, H.K. Puri for the Respondent.

    The Judgment of the Court was delivered by
                                                                   F
    D.K. JAIN, J. 1. Leave granted.

      2. This appeal, by special leave, arises from the judgment
dated 18th November 2008 rendered by a learned Single Judge
of the High Court of Calcutta in C.R.R. No. 523 of 2008. By the    G
impugned judgment,.the learned Judge has dismissed the
petition preferred by the appellants under Section 482 of the
of the Code of Criminal Procedure, 1973 (for short "the Code")
seeking quashing of a private complaint filed by respondent
No.2 in this appeal, for an offence under Section 500 read with    H
    136     SUPREME COURT REPORTS                   [2010] 7 S.C.R.


A   Section 34 of the Indian Penal Code, 1860 (for short "the IPC").

        3. The facts, material for the purpose of disposal of this
    appeal, may be stated thus:

        Appellant No.1 is the President and Chief Executive
B Officer of the Chartered Financial Analysts Institute (hereinafter
  referred to as "CFA Institute"), incorporated under the laws of
  the State of Virginia, United States. Appellant No.2 is the
  President of the Indian Association of Investment Professionals,
  who is a member of the society of CFA Institute CFA Institute
C is a non stock corporation and confers the designation of Chief
  Financial Analyst ("CFA" for short) upon its members who fulfil
  a minimum professional criterion. CFA certification is
  considered to be a definitive standard for professional
  competence.
D
        4. In the year 1985, on being approached by the Institute
  of Chartered Financial Analysts of India (for short "ICFAI"),
  respondent No.2 herein, a registered society, having its office
  at Kolkata, CFA Institute entered into a licence agreement with
E them to conduct its CFA program in India. The agreed
  arrangement continued for quite some time. However, realising
  that respondent No.2 was not adhering to the required
  standards and quality in the said program, CFA Institute
  decided to wean off its arrangement with ICFAI - respondent
  No.2. Since, in the meanwhile, respondent No.2 was attempting
F to get the trademarks of CFA Institute registered in India, in the
  year 1997, CFA Institute issued a notice of termination of its
  licence with the said respondent. On receipt of the said notice,
  respondent No.2 filed a declaratory suit before the District
  Courts in Hyderabad, seeking a declaration regarding the
G change of their name "ICFAI" and their use of the designation
  "CFA". However, they did not succeed in getting any interim or
  final relief in the said suit. In the year 2004, CFA Institute filed
  a Civil Suit [C.S.(OS) No.210 of 2004] in the High Court of
  Delhi for permanent injunction restraining respondent No.2 from
H
   JEFFREY J. DIERMEIER AND ANR. v. STATE OF                 137
       WEST BENGAL & ANR. [D.K. JAIN, J.]

using the trade marks, services, service marks or trade name         A
CFA, Chartered Financial Analyst, The Institute of Chartered
Financial Analysts of India, ICFA and ICFAI or any other name
or mark which may be identical or deceptively similar to these
marks and passing off CFA Institute Programs or business as
that of CFA Institute. Vide Order dated 4th August 2006, the         B
High Court passed the following order by way of interim relief:

    "30. In view of the above, I allow the application under
    Order XXXIX Rules 1 & 2 CPC and restrain the
    defendants, during the pendency of the suit from using any       C
    of the trademarks or service marks CFA, Chartered
    Financial Analyst, The Institute of Chartered Financial
    Analysts of India, ICFA and ICFAI or any other name or
    mark which may be identical or deceptively similar to these
    marks and from passing off their programmes or business
    as that of the plaintiffs. However, this order of injunction     D
    will not come into effect till the end of current academic
    session of the CFA Programme run by the defendants.
    Nor will anything said herein will mean final expression of
    opinion of this Court."
                                                                     E
                                           [Emphasis supplied]

      5. On 30th January 2007, respondent No.2, through its
sponsored University in Tripura - The Institute of Chartered
Financial Analysts of India University, Tripura (hereinafter
                                                                     F
referred to as "the University"), issued an advertisement inviting
applications for fresh enrolments for award of "CFA"
certification. According to CFA Institute, since the programmes
which were current at the time of passing of the order of interim
injunction by the High Court of Delhi on 4th August 2006 had
come to an end in January 2007, the invitation for fresh             G
enrolment in terms of the advertisement issued on 30th January
2007 was for subsequent programmes, which were not current
at the time of the interim injunction order and, therefore, it was
in breach of the said interim injunction. Accordingly, on 12th
                                                                     H
    138       SUPREME COURT REPORTS                  [2010] 7 S.C.R.


A   February 2007, CFA Institute issued a public notice under the
    caption "A Word of Caution to the Indian Investment
    Community'', (hereinafter referred to as "Word of Caution"). The
    relevant extract of the said publication reads thus:

          "There is confusion over the "CFA" name in India, and you
B
          deserve to know the facts. The Chartered Financial Analyst
          (CFA(R)) designation from CFA Institute is the only globally
          recognized CFA designation for financial professionals ..

          However, the Institute of Chartered Financial Analysts of
c         India (lcfai) offe'rs an educational program specializing in
          finance, which they term the "CFA Program", and awards
          a title called the "CFA''.

          On 4th August 2006, the Delhi High Court recognized that
D         CFA Institute owns the exclusive rights to the CFA
          trademarks and that continued use by lcfai causes
          irreparable harm. The court ordered an interim injunction
          requiring lcfai to stop using the "Chartered Financial
          Analyst" and "CFA" brands and to change its corporate and
          "CFA" title names. Unfortunately, lcfai has continued its
E
          unauthorized use of our trademarks by running
          advertisements from an lcfai-sponsored university.



F         If you are planning to either hire an investment
          professional or obtain a designation, you need to make
          informed decision that benefit your future. Visit
          www.cfainstitute.org/lndia for more information about
          enrolling in the CFA Program, Scholarships, joining the.
G         IAIP, and the latest updates about our efforts to end this
          confusion and support the Indian Investment Community."

                                            (Emphasis added by us)

          6. Alleging that the said public notice was defamatory
H
  JEFFREY J. DIERMEIER AND ANR. v. STATE OF                  139
      WEST BENGAL & ANR. [D.K. JAIN, J.]
within the meaning of Section 499 of the IPC, respondent No.2       A
filed a private complaint against the appellants. The trial court
took cognizance of the complaint and issued summons to the
appellants. Feeling aggrieved by the summoning order, the
appellants preferred the afore-noted petition before the High
Court of Calcutta. As already stated, by the impugned judgment,     B
the High Court has dismissed the said petition. Hence, the
present appeal by the accused.

     7. Shri Shanti Bhushan, learned senior counsel appearing·
on behalf of the appellants strenuously urged that the High
Court gravely erred in declining to exercise its jurisdiction under C
Section 482 of th~ Code in a case wher~ the complaint ex facie
lacks basic ingredients of Section 499 of the IPC. Learned
counsel submitted that by offering a prospectus for a new
session beginning in the year 2007, which would be of 12-18
months duration, the University, a sponsored University of ICFAI D
had violated the injunction order issued by the High Court of
Delhi on 4th August 2006 and, therefore, in the wake of a
misleading advertisement, the appellants were compelled to
issue a "Word of Caution".
                                                                    E
     8. Learned counsel contended that from the provisions of
the Institute of Chartered Financial Analysts of India University,
Tripura Act, 2004 (for short "the Act"), it was clear that the
University was nothing but an alter ego of respondent No.2. In
support of the contention, learned counsel referred to certain F
provisions of the Act showing that it is respondent No.2 who
appoints the Chancellor of the University and in turn the
Chancellor appoints the Vice-Chancellor; under Section 20 of
the Act, the Board of Governors consists of Chancellor, Vice-
Chancellor and three other persons nominated by respondent G
No.2; under Section 21 of the Act, the Board of Management
consists of 9 persons of whom as many as 7 persons are to
be the nominees of respondent No.2. It was, thus, submitted
that all the acts of the University were really the acts of
 respondent No.2 itself and, therefore, the advertisement issued
                                                                    H
    140      SUPREME COURT REPORTS                 [2010] 7 S.C.R.


A for fresh admission by the University was clearly in breach of
   the order passed by the Delhi High Court. According to the
   learned counsel, the effect of the advertisement dated 30th
   January 2007 would have been to induce prospective students
   to believe that joining the new course offered by the University
B in the year 2007 would entitle them to get CFA designation from
   CFA Institute. It was argued that it was in these circumstances
   and keeping in mind the public interest that the appellants had
   issued a "Word of Caution" to the students who wished to obtain
   CFA certification. Learned counsel asserted that the
c prosecution of the appellants on account of publication of the
   said "Word of Caution" is an abuse of the process of the Court
   inasmuch as the said "Word of Caution" published by them was
   a public duty and thus, a legitimate expression. It was also
   absolutely necessary and in public interest and was singularly
  .covered by the Tenth Exception to Section 499 of IPC.
0
         9. It was also the assertion of the learned counsel that the
   contents of the "Word of Caution" did not in any way lower or
   cast a reflection on the moral or intellectual character of
   respondent No.2 and, therefore, Explanation 4 to Section 499
E of the IPC, which imposes restrictions in the law of defamation,
    is clearly attracted in favour of the appellants. It was thus,
   pleaded that in the light of Explanation 4 as well as Tenth
    Exception to Section 499 IPC, the allegations in the complaint
   did not constitute an offence of defamation punishable under
F Section 500 IPC and, therefore, the High Court ought to have
   quashed the complaint. In support of the proposition, learned
    counsel placed reliance on the decisions of this Court in the
    case of State of Haryana Vs. Bhajan La/1 and Shatrughna
    Prasad Sinha Vs. Rajbhau Surajmal Rathi & Ors. 2 • Relying
G on Rajendra Kumar Sita ram Pande & Ors. Vs. Uttam & Anr. 3,
    learned counsel argued that under the given circumstances,

    1.   1992 supp. (1) sec 335.
    2.   <1996) 6 sec 263.
H 3. (1999) 3 sec 134.
     JEFFREY J. DIERMEIER AND ANR. v. STATE OF               141
         WEST BENGAL & ANR. [D.K. JAIN, J.]
requiring the appellants to undergo trial would be travesty of       A
justice.

      10. Per contra, Shri K. K. Venugopal, learned senior
counsel appearing on behalf of respondent No.2 supported the
impugned judgment and submitted that all the grounds urged           B
on behalf of the appellants for quashing the complaint involve
determination of disputed questions of fact for which the matter
has to go to trial and, therefore, the High Court was justified in
not analyzing and returning a finding on the truthfulness or
otherwise of the allegations in the complaint. Heavily relying on    C
the majority view expressed by a Bench of three Judges in
Sewakram Sobhani Vs. R.K. Karanjia, Chief Editor, Weekly
Blitz & Ors.4, learned counsel argued that answers to the
questions whether the appellants were entitled to protection
under Explanation 4 or that the advertisement was issued in
"good faith" and for "public good" as contemplated in the Tenth      D
 Exception are questions of fact and matters for evidence and,
therefore, trial in the complaint must continue. In this behalf,
 reliance was also placed on the decisions of this Court in M.N.
 Damani Vs. S.K. Sinha & Ors. 5 and Shriram Refrigeration
 Industries Vs. Hon'ble Addi. Industrial Tribunal-Cum-Addi.          E
 Labour Court, Hyderabad & Ors. 6

     11. Learned counsel argued that a reading of the offending
publication as a whole would show that omission of the
sentence "However, this order of injunction will not come into       F
effect till the end of current academic session of CFA
programme run by the defendants nor will anything said herein
will meah final expression of opinion of this Court" was a
conscious and deliberate suppression intended to portray ICFAI
as a wrong doer, which has violated an injunction order passed       G
by the High Court and in the process is in contempt of the said
order. According to the learned counsel, suppression of the fact
4.    (1981) 3 sec 208.
s.    (2001 > s sec 1s6.
6.    (2002) g sec 708.                                              H
    142        SUPREME COURT REPORTS                [2010] 7 S.C.R.


A that the interim injunction did not apply to the "current academic
  session of the CFA Programme'', which was to conclude only
  in May 2009; had subjected the students who were undergoing
  the three year course to fear and anxiety that three years of their
  lives would be wasted, giving the impression that respondent
B No.2 had cheated them. It was contended that the conscious
  and deliberate omission of the last sentence of the order of
  interim injunction was with the sole objective to deter the
  students from enrolling in the CFA Programme offered by the
  four Universities in the State of Uttarakhand, Meghalaya, Tripura
c and Mizoram by creating a fear psychosis amongst the
  aspirants and, therefore, the offending publication was not in
  "good faith" and "public interest" as is being pleaded by learned
  counsel for the appellants.

       12. Placing reliance on the decision of this Court in Chand
D Dhawan (Smt) Vs. Jawahar Lal & Ors. 7 , learned counsel
  submitted that since the High Court had observed that the
  allegations in the complaint prima facie constituted an offence
  under Section 499 IPC, it did not err in refusing to interfere in
  the matter. Reliance was also placed on the decisions of this
E Court in Som Mittal Vs. Government of Karnataka 8 and Som
  Mitta/ Vs. Government of Karnataka 9 to contend that power to
  quash criminal proceedings is to be exercised in the rarest of
  rare cases.

F      13. Shri Venugopal also contended that the University at
  Tripura, not being a party to the suit at the time of passing of
  the order by the High Court was not bound by the said order,
  yet the statement in the advertisement that the continued
  unauthorized use of appellant's trademark through the
G sponsored Universities is per se defamatory and has caused
  immense harm to the image and reputation of respondent No.2
  in the eyes of the Indian Investment Community as also the
    1.   (1992) 3 sec 317.
    8.   c2008) 3 sec 574.
H 9.     c2ooa) 3 sec 753.
  JEFFREY J. DIERMEIER AND ANR. v. STATE OF               143
      WEST BENGAL & ANR. [D.K. JAIN, J.]
student community at large.                                      A

      14. Learned senior counsel strenuously urged that since
the stand of the appellants before the High Court was that they
were entitled to the protection of Fourth and Fifth Exceptions
to Section 499 IPC, they cannot now be permitted to rely upon B
Explanation 4 and Tenth Exception to Section 499 IPC so as
to build up a totally new case before this Court. In support of
the proposition that a new plea, which is essentially a plea of
fact, cannot be allowed to be urged for the first time at the
 hearing of appeal under Article 136 of the Constitution before C
this Court, learned counsel placed reliance on the decisions of
 this Court in Jagir Kaur & Anr. Vs. Jaswant Singh 10 , State of
 Bihar & Ors. Vs. Shyam Yadav & Ors. and D.S. Parvathamma
  Vs. A. Srinivasan 11 .

     15. Thus, the question for consideration is whether or not D
in the light of the allegations as projected in the complaint
against the appellants, it was a fit case where the High Court
in exercise of its jurisdiction under Section 482 of the Code
should have quashed the complaint against the appellants?
                                                                  E
       16. Before addressing the contentions advanced on behalf
·of the parties, it will be useful to notice the scope and ambit of
 inherent powers of the High Court under Section 482 of the
 Code. The Section itself envisages three circumstances under
 which the inherent jurisdiction may be exercised, namely, (i) to. F
 give effect to an order under the Code; (ii) to prevent abuse of
 process of Court; and (iii) to otherwise secure the ends of
 justice. Nevertheless, it is neither possible nor desirable to lay
 down any inflexible rule which would govern the exercise of
 inherent jurisdiction of the Court. Undoubtedly, the power
 possessed by the High Court under the said provision is very G
 wide but is not unlimited. It has to be exercised sparingly,

 10. [1964] 2 S.C.R. 73.
 11. (1997) 2 sec 507.
 12. (2003) 4 sec 705.                                            H·
    144           SUPREME COURT REPORTS                 [2010] 7 S.C.R.


A carefully and cautiously, ex debito justitiae to do real and
  substantial justice for which alone the court exists. It needs little
  emphasis that the inherent jurisdiction does not confer an
  arbitrary power on the High Court to act according to whim or
  caprice. The power exists to prevent abuse of authority and not
B to produce injustice.

       17. In one of the earlier cases, in R.P. Kapur Vs. State of
  Punjab 13 this Court had summarized some of the categories
  of cases where inherent power under Section 482 of the Code
C could be exercised by the High Court to quash criminal
  proceedings against the accused. These are:

           (i)      where it manifestly appears that there is a legal bar
                    against the institution or continuance of the
                    proceedings e.g. want of sanction;
D
           (ii)     where the allegations in the first information report
                    or the complaint taken at its face value and
                    accepted in their entirety do not constitute the
                    offence alleged;
E          (iii)    where the allegations constitute an offence, but
                    there is no legal evidence adduced or the evidence
                    adduced clearly or manifestly fails to prove the
                    charge.

F        18. In Dinesh Dutt Joshi Vs. State of Rajasthan 16 , while
    dealing with the inherent powers of the High Court, this Court
    has observed thus:

          ".... The principle embodied in the section is based upon
          the maxim: quando lex a/iquid a/icui concedit, concedere
G         videtur et id sine quo res ipsae esse non potest i.e. when
          the law gives anything to anyone, it gives also all those
          things without which the thing itself would be unavailable.

    1.3. AIR 1960 SC 866.
H   18. (2001) 8 sec s10
  JEFFREY J. DIERMEIER AND ANR. v. STATE OF               145
      WEST BENGAL & ANR. [D.K. JAIN, J.]

    The section does not confer any new power, but only           A
    declares that the High Court possesses inherent powers
    for the purposes specified in the section. As lacunae are
    sometimes found in procedural law, the section has been
    embodied to cover such lacunae wherever they are
    discovered. The use of extraordinary powers conferred         B
    upon the High Court under this section are however
    required to be reserved, as far as possible, for
    extraordinary cases."

     19. The purport of the expression "rarest of rare cases", r C
to which reference was made by Shri Venugopal, has been
explained recently in Som Mittal Vs. Government of Karnataka
(supra). Speaking for a bench of three Judges, Hon'ble the
Chief Justice said:

    "When the words 'rarest of rare cases' are used after the D
    words 'sparingly and with circumspection' while describing
    the scope of Section 482, those words merely emphasize
    and reiterate what is intended to be conveyed by the words ,
    'sparingly and with circumspection'. They mean that the
    power under Section 482 to quash proceedings should not E
    be used mechanically or routinely, but with care and
    caution, only when a clear case for quashing is made out
    and failure to interfere would lead to a miscarriage of
    justice. The expression "rarest of rare cases" is not used
    in the sense in which it is used with reference to F
    punishment for offences under Section 302 IPC, but to
    emphasize that the power under Section 482 Cr.P.C. to
    quash the FIR or criminal proceedings should be used
    sparingly and with circumspection."

     20. Bearing in mind the afore-stated legai position in       G
regard to the scope and width of the power of the High Court
under Section 482 of the Code, we shall now advert to the facts
at hand.

     21. As noted above, the gravamen of the allegations made     H
    146       SUPREME COURT REPORTS                   [2010] 7 S.C.R.


A against the appellants in the complaint under Section 500 of
  the IPC is that when on 30th January 2007, respondent No.2
  through its sponsored University at Tripura issued
  advertisement for fresh enrolments for award of CFA
  Certification, CFA Institute, through its President and CEO,
B appellant No.1, in this appeal, issued the offending "Word of
  Caution" wherein they: (1) deliberately and consciously did not
  publish the full text of the interim injunction granted by the High
  Court against respondent No.2 vide order dated 4th August
  2006. They did not mention that order dated 4th August 2006
c was with a rider that the said order will not come into effect till
  the end of the current academic session of CFA programme
  run by the society and (2) the defamatory advertisement
  portrays that the designation given by CFA Institute is the only
  valid designati9n and the CFA certificate given by the society
  is not valid. According to the complainant, all this was a
0
  malicious act on the part of appellant No.1, with the intention
  to harm their reputation in the estimation of the public in general
  and its present and past students in particular and, therefore,
  they are liable to be punished under Section 500 read with
E Section 34 of the IPC. For the sake of ready reference, the
  relevant portion of the complaint is extracted below:

          "That in the defamatory advertisement, the accused
          persons have stated inter alia as follows-

F            . "The Chartered Financial Analyst (CFA) designation
          from CFA Institute is the only globally recognized CFA
          designation for financial professional. However, the Institute
          of Chartered Financial Analysts of India (lcfai) offers an
          educational programme specializing in finance, which they
          term the 'CFA Programme' and awards a title called the
G
          CFA".

                That in the aforesaid advertisement, the American
          Association has falsely claimed sole global recognition of
          its 'CFA' designation even though the same is not
H         recognized by any Government arid/or Statutory authority
JEFFREY J. DIERMEIER AND ANR. v. STATE OF                   147
    W~ST BENGAL & ANR. [D.K. JAIN, J.)

  either in USA or in any other country including India. The A
  sole purpose of using the word 'Charter' by the accused
  is purely with an intention to defraud and/or mislead the
  public to convey statutory recognition. The said
  advertisement does not disclose that unlike the "CFA'
  degree granted by the SQciety, the so called "CFA Charter B
  is not recognized by any University in India or outside and
  the students who obtain such "Charter" cannot pursue
  further studies based on the "CFA Charter" so awarded
  by the CFA Institute. The tenor of the ab9ve statements in
  the defamatory advertisement portrays an image that the          c
  designation, given by the"CFA Institute, is the only valid
  designation and the 'CFA' degree given by the Society is
   not a valid one. However, the situation is to the contrary
   and the Society is a body recognized by the various
   statutory aµthorities of India to be entitled to grant the "CFA" /D
  degree. The s_ole purpose isto defame and scandalize
   and.' thereby lbwer the image of the Society in the eyes of
   the general public as also in the eyes of its present students
   as alS'o potential students and thereby harm the image of '
   the Socie-fY, so that the organization of the accused E
   persons can benefit therefrom.

  That in the defamatory advertisetnent dated 12.02.2007,
  the accused persons have further stated as follows:-

        "On 4th August, 2006, the Delhi High Court F
  recognized that CFA Institute owns the exclusive rights to
  the CFA trademarks and that continued use by ICFAI
  causes irreparable harm. The court ordered an interim
  injunction requiring lcfai to stop using the "Chartered
  Financial Analyst" and "CFA" brands and to change its G
  corporate and "CFA" titles names. Unfortunately, lcfai has
  continued its unauthorized use of our trademarks by
  running advertisements from an lcfai-sponsored
  university".

         The said statements are patently false and                 H
    148      SUPREME COURT REPORTS                  [2010] 7 S.C.R.


A         defamatory in nature. The accused persons deliberately,
          wilfully and with malafide intention have not mentioned
          in the advertisement that the order dated 4. 8. 2006
          passed by the Hon'ble High Court of Delhi, granting
          temporary injunction, has been made with a rider that the
B         said "order of injunction will not come into effect till the
          end of the current academic session of the CFA program
          run by the Society." It is well within the knowledge of the
          accused that the current academic session of the CFA
          programme of the Society has not come to an end and
c         as such it cannot be said that there has been
          unauthorized use of the alleged trade marks of the CFA
          Institute. Continuance of the current academic session
          from a University, sponsored by the Society, cannot be said
          to be in violation of the order of injunction passed by the
           Hon'ble High Court of Delhi. Moreover, the defamatory
D
           advertisement does not mention the fact (which is within
           the knowledge of the accused) that against the above
           interim order of injunction, an appeal is pending in the
           Hon'ble High Court of Delhi. The tenor of the said
           defamatory statement makes it clear that the accused,
E          with malafide intent to injure and harm the Society, had
           misquoted the order passed by the Hon'ble High Court
           of Delhi on 4. 8. 2006."

                                                  (Emphasis added)
F
         22. Since the factum of publication of the "Word of Caution"
    is not in dispute, the question for determination is whether the
    afore-extracted allegations in the complaint constitute an
    offence of "defamation" as defined in Section 499 of the IPC
G   and would attract the penal consequences envisaged in Section
    500 of the IPC?

          23. "Defamation" is defined under Section 499 of the IPC.
    It reads as under:

H         "499. Defamation.-Whoever, by words either spoken or
  ,JEFFREY J. DIERMEIER AND ANR. v. STATE OF                 149
       WEST BENGAL & ANR. [D.K. JAIN, J.]

    intended to be read, or by signs or by visible                   A
    representations, makes or publishes any imputation
    concerning any person intending to harm, or knowing or
    having reason to believe that such imputation will harm, the
    reputation of such person, is said, except in the cases
    hereinafter excepted, to defame that person."                    B

     24. To constitute "defamation" under Section 499 of the
IPC, there must be an imputation and such imputation must
have been made with intention of harming or knowing or having
reason to believe that it will harm the reputation of the person     C
about whom it is made. In essence, the offence of defamation
is the harm caused to the reputation of a person. It would be
sufficient to show that the accused intended or knew or had
reason to believe that the imputation made by him would harm
the reputation of the complainant, irrespective of whether the
complainant actually suffered directly or indirectly from the        D
imputation alleged.

     25. However, as per Explanation 4 to the Section, no
imputation is said to harm a person's reputation, unless that
imputation directly or indirectly lowers the moral or intellectual   E
character of that person, or lowers the character of that person
in respect of his caste or of his calling, or lowers the credit of
that person, in the estimation of others or causes it to be
believed that the body of that person is in a loathsome state,
or in a state generally considered as disgrac~ful.                   F

    26. As stated above, the thrust of the argument of learned
counsel for the appellants was that since the "Word of Caution"
was issued in "good faith" for the benefit of those who were
planning to acquire CFA Certificate, and the same being for
the "public good", the case falls within the ambit of Tenth          G
Exception to Section 499 of the IPC and, therefore, the
appellants cannot be held liable for defamation.

     27. Tenth Exception to Section 499 of the IPC reads as
follows:                                                             H
    150       SUPREME COURT REPORTS                   [2010] 7 S.C.R.


A         "Tenth Exception.-Caution intended for good of person
          to whom conveyed or for public good.-lt is not defamation
          to convey a caution, in good faith, to one person against
          another, provided that such caution be intended for the
          good of the person to whom it is conveyed, or of some
B         person in whom that person is interested, or for the public
          good."

       28. It is plain that in order to bring a case within the scope
  of the Tenth Exception, it must be proved that statement/
C publication was intended in "good faith" to convey a caution to
  one person against another; that such caution was intended for
  the good of the person to whom it was conveyed, or of such
  person in whom that person was interested, or for the "public
  good".

D      29. Before dealing with the question whether or not the
  Tenth Exception would be attracted in the instant case, it would
  be appropriate at this juncture, to deal with the objection raised
  by learned senior counsel appearing for respondent No.2, that
  no plea regarding applicability of the Tenth Exception having
E been urged before the High Court, the appellants are estopped
  from raising such a plea at this stage. Ground IV in the petition
  before the High Court was in the following terms:

          "Ground IV - For that the publication dated February 12,
          2007 was essential and in public interest and thus made
F         to protect the interest of the general public who might
          otherwise have been induced to join the course offered by
          the complainant/opposite party no.2 in the belief that it was
          entitled to conduct the same. The language of the
          publication is a fact and there is no question of there being
G         any defamation involved in the same."

      30. It is clear from the above that in their defence, the
  appellants had pressed into service the Tenth Exception to
  Section 499 of the IPC. It was their case that the publication in
H question was in publi~interest as it was made to protect the
  JEFFREY J. DIERMEIER AND ANR. v. STATE OF                     151
      WEST BENGAL & ANR. [D.K. JAIN, J.]

interests of those who were planning to join the CFA course             A
announced by the University. In our view, the appellants are not
seeking to raise a new ground and, therefore, respondents'
objection on that account deserves to be rejected.

      31. Now, reverting back to the main issue, as afore-stated,
                                                                        8
the appellants issued the offending "Word of Caution" ostensibly
in order to warn those who were either planning to hire an
investment professional or to obtain a CFA designation that
there was an interim injunction against respondent No.2 from
using their afore-noted trademarks. It is claimed by the                C
appellants that the said notice was aimed at that group of
people who were interested in acquiring a definitive standard
for professional competence or for those who wanted to hire
such professionals and not for the general public as such.
According to them, this is clear from the text of the "Word of
Caution", which says that "If you are planning to either hire an        D
 investment professional or obtain a designation, you need to
 make informed decisions that benefit your future." However, it
cannot be denied that while the publication refers to the interim
 order passed by the Delhi High Court, it omits to mention that
the said injunction will not come into effect till the end of current   E ·
 academic session of the CFA programme, which, according
 to respondent No.2, was to conclude in May 2009, and that the
 order would not mean expression of final opinion on the matter.
 According to respondent No.2, the omission of last two
 sentences of the interim order was a conscious and deliberate          F
 suppression to somehow project ICFAI in a bad light in order
 to harm its reputation in the eyes of the professional community
 and, therefore, the offending publication was neither in "good
 faith" nor in "public interest".
                                                                        G
    32. It is trite that where to the charge of defamation under
Section 500 IPC, the accused invokes the aid of Tenth
Exception to Section 499 IPC, "good faith" and "public good"
have both to be established by him. The mere plea that the
accused believed that what he had stated was in "good faith"
                                                                        H
    152     SUPREME COURT REPORTS                  [2010) 7 S.C.R.


A   is not sufficient to accept his defence and he must justify the
    same by adducing evidence. However, he is not required to
    discharge that burden by leading evidence to prove his case
    beyond a reasonable doubt. It is well settled that the degree
    and the character of proof which an accused is expected to
B   furnish in support of his plea cannot be equated with a degree
    of proof expected from the prosecution in a criminal trial. The
    moment the accused succeeds in proving a preponderance of
    probability, onus which lies on him in this behalf stands
    discharged. Therefore, it is neither feasible nor possible to lay
C   down a rigid test for deciding whether an accused person acted
    in "good faith" and for "public good" under the said Exception.
    The question has to be considered on the facts and
    circumstances of each case, having regard to the nature of
    imputation made; the circumstances on which it came to be
    made and the status of the person who makes the imputation
0
    as also the status of the person against whom imputation is
    allegedly made. These and a host of other considerations
    would be relevant and required to be considered for deciding
    appellants' plea of "good faith" and "public interest".
    Unfortunately, all these are questions of fact and matters for
E   evidence.

       33. In the instant case, the stage for recording of evidence
  had not reached and, therefore, in the absence of any evidence
  on record, we find it difficult to return a finding whether or not
F the appellants have satisfied the requirements of "good faith"
  and "public good" so as to fall within the ambit of the Tenth
  Exception to Section 499 IPC. Similarly, it will neither be
  possible nor appropriate for this Court to comment on the
  allegations levelled by respondent No.2 and record a final
G opinion whether these allegations do constitute defamation.
  Reading the complaint as a whole, we find it difficult to hold that
  a case for quashing of the complaint under Section 482 of the
  Code has been made out. At this juncture, we say no more lest
  it may cause prejudice to either of the parties.
H
  JEFFREY J. DIERMEIER AND ANR. v. STATE OF                  153
      WEST BENGAL & ANR. [D.K. JAIN, J.]

      34. For the afore-going reasons, we are of the opinion that   A
the High Court was right in refusing to quash the complaint
under Section 500 IPC. The appeal, being devoid of any merit,
is dismissed accordingly. Nothing said by the High Court or by
us hereinabove shall be construed as expression of final
opinion on the merits of the complaint.                             B

B.B.B.                                      Appeal dismissed.